No federal definition of consent creates uncertainty for miners

When it comes to resource companies getting assurance they have in fact reached consent with First Nations groups to proceed with exploration, the absence of a proper definition of the word “consent” from the federal government has left miners and their lawyers considering various formulas to determine if they really do have consent.

Is it consensus amongst the bands, is it a majority of bands? Does it have to come from the band council or can perceived consent be challenged by the members of a certain band if they don’t agree with their council? It’s a grey area that has generated a lot of work for lawyers, according to a panel today at the Prospectors and Developers Association of Canada convention in Toronto.

“Thanks to the federal government, who has done nothing on this issue other than pass the Indian Act, there is no over-arching legislation that provides certainty in relation to acquisition of consent, unless the band and the collective self-identify,” said Charles Willms, chairman of Fasken Martineau DuMoulin LLP’s Vancouver aboriginal law practice, speaking at the panel, Key Legal Cases in Canada: The Current Landscape.

“If they are the same [nation and band], then a band council resolution approving whatever you’re doing has been understood by the industry [to be consent], although I don’t think it’s been tested yet, and some court cases have suggested that is consent,” he added.

When dealing with First Nations like the Chilcotin in British Columbia, where there are seven bands and Chilcotin people on six-and-a-half of the reserves, Willms said it will be challenging to determine how consent could be obtained, other than through some sort of collective.

“We have resolved a number of disputes in our province where we’ve actually set up a method of voting where the First Nation agrees they will be voting for a particular agreement and a voting process takes place, but it’s a complicated area,” said Willms.

Fasken partner Kevin O’Callaghan noted they can also point to a number of ways hey know they have achieved consent if the nation and the band are the same and the band says yes.

Also, if the nation is made up of a number of bands and there is a First Nation representative representing all those involved and that person says yes, then consent is considered achieved.

“The trouble is if the nation says yes and one of the bands says no we don’t know the answer. So we have a bunch of ways of getting to yes but we just don’t necessarily know the answer if there is disagreement,” said O’Callaghan.

The panel was also asked to speak to requirements for infringing on aboriginal title. If, for example, someone wanted to conduct mining in a place that had established aboriginal title could it be justified?

Willms referenced the case of Delgamuukw v. British Columbia, in which it said there may be some instances where infringement can only be justified where consent has been obtained.

“That’s where the site specific versus territorial, or seasonal round approach may be very important because if it’s a broader area the question of consent or where consent may be necessary is quite different from site specific,” he said. “With site specific, you can see where at the village site or a spiritual area or where hunting has taken place you can see where if you have title to that area it would be an area where consent would be required.”

However if it was an area well travelled and one could see an argument for justifying the infringement what the court was saying in Delgamuukw is that part of reconciliation and sovereignty with aboriginal claims, says Willms, is that “we’re all here to stay but the world has to progress but in a way that is respectful and recognizes those aboriginal rights and titles.”

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